Probate and Trust Property Information and Resources

Probate and Trust Glossary

Abatement:  A proportional diminuition or reduction of the pecuniary legacies when there are not sufficient funds to pay them in full.

Ademption:  When property mentioned in a will cannot be given to a beneficiary because it no longer belonged to the deceased at the time of death. The particular gift may have been destroyed, sold or given away between the time of the will and the time of death.

Administrator:  A person or institution appointed by a court to act on behalf of the deceased person in connection with the administration of a decedent's estate.

Administrator with Will Annexed (for Administrator CTA):  An administrator appointed by a court to act on behalf of the deceased person who left a will, but where no nominated executor is willing and/or able to act.

Advanced Health Care Directive:  A legal document in which one or more agents are named to make health care and treatment decisions for the designee.

Affidavit:  A written statement or affirmation made under penalty of perjury that requires notarization.

Agent: The person named in a power of attorney to act on the principal's behalf. Sometimes called an attorney-in-fact.

Ancillary Administration:  The administration of a decedent's property located in a state other than the state of the decedent's domicile.

Beneficiary: A person or entity who inherits when there is a will or trust.

Charitable Remainder Trust: A trust in which property or money is donated to a charity, but the grantor continues to use the property and/or receive income from it while living.

Codicil: An addition to a will. A codicil may modify, add to, subtract from, qualify, alter or revoke provisions in the will. The codicil is a separate document from the will that it modifies. A codicil can be changed, revoked or cancelled at any time.

Community property: In general, assets a married couple acquire during the marriage and while living in a community property state. Either spouse may manage or control the community real and personal property, but both spouses must join in a transfer of ownership or lease for more than one year of community real property or a gift of community personal property.

Conservatee: The person whose care is provided for under a conservatorship.

Conservator: A person or corporation who has the court-appointed fiduciary responsibility for the care and management of the person, property or both of an adult who is unable to provide for his/her own personal needs or who is substantially unable to manage his/her financial affairs.

Conservatorship: A court proceeding wherein a judge appoints a responsible person (conservator) to take control of the care of another person (conservatee) who cannot care for him/her self and/or his/her finances. Limited conservatorships may be established for developmentally disabled adults.

Contingent Beneficiary:  One to whom distribution is dependent upon the occurrence of an event.

Custodian: Person named to manage assets left to a minor under the Uniform Transfer to Minors Act.

Custodian of the Will: The person in possession of the will when the person who wrote the will dies.

Decedent: The person who died.

Declaration:  A written statement made under penalty of perjury.

Devisees and Legatees:  Persons named by a decedent in his/her will. A bequest or devise generally refers to real property and a legacy of money or personal property.

Disclaimer:  A refusal to accept, for example, a testamentary gift that is made in a prescribed manner and time.

Domicile:  The specific location of a person's permanent residence that determines, for many purposes, the laws that will govern his/her affairs. A person may have many residences, but he/she can have only one domicile. The domiciliary proceeding is that created in the jurisdiction of the decedent's domicile.

Donee:  A person who receives a gift from another.

Donor:  A person who makes a gift to another.

Escheat:  The reversion of property to the state in the event that a person dies leaving no valid will and no heirs at law surviving him/her.

Estate administration:  Sorting out what happens to a person's assets after the person dies.

Estate tax - Federal:  Taxes imposed by the federal government on assets transferred to others when a person dies.  No federal estate tax is due until the giver has used up his or her estate tax exemption amount. Individual states have varying estate tax rules.

Executor:  The person or corporation appointed in a will to sort out the probate estate, deal with debts and distribute assets.  Sometimes called the administrator or personal representative. This person is usually named as the seller of the real property.

Ex Parte:  A judicial proceeding granted without notice.

Fiduciary:  A person charged with a high degree of care who acts on behalf of another. Executors and trustees are fiduciaries.

Gift tax:  A tax on gifts made while the giver is alive.  No tax is due until the giver has used up his or her lifetime gift tax exemption amount.

Grantor:  The person or corporation who makes a grant of property to another person or entity by creating and signing a trust.  Sometimes called the settler or trustor.

Guardian:  The person or corporation who legally has charge of the care and management of the person, property, or both, of a child during his/her minority.

Guardianship:  A court proceeding in which a judge names a person to handle the personal, financial and medical affairs of an incapacitated person.

Heir: A person who inherits property from an estate.

Holographic will:  A will where all provisions are in the testator's handwriting.

Intestate:  When someone dies without leaving a will. The intestate person has failed to name who will receive assets in his or her probate estate. When there is no will, the sale of the decedent's real property often requires court confirmation.

Intestate succession: The order of who inherits the property when the decedent does not have a will.

Inter Vivos Trust:  A trust created by a living person who is referred to as the "Grantor" (Trustor). An Inter Vivos Trust may be either revocable or irrevocable.

Irrevocable Trust:  A trust whose terms and provisions cannot be changed, modified, altered, amended or revoked.

Joint Tenancy:  A form of property ownership by two or more persons often designated as "joint tenancy with rights of suvivorship". Joint tenants own equal shares of joint tenancy property. When a joint tenant dies, his or her interest in the property automatically goes to the surviving joint tenant(s).

Legatees, or Devisees: People who are named in a will.

Life estate deed:  An irrevocable deed transferring the remainder of real estate upon owner's death; A probate avoider.

Life Estate Tenant:  The person who receives the benefits from real or personal property during his/her lifetime only. The benefits stop when he/she dies.

Living Trust: An estate planning document used to transfer assets at death while avoiding probate.

Medi-Cal/Medicaid:  A combined Federal and State program that pays for care services (nursing homes) for people whose assets are within designated financial limits. Those expenditures can be billed back to the estate after death.

Medicare: A federal program that provides health insurance for individuals who have certain disabilities or are 65 or older.

Minor:  A person who is under the legal age of competence.

Personal Representative (Administrator or Executor): The person responsible for overseeing the distribution of the estate.

Pour-over will:  A simplified will that directs that any probate estate assets transfer at death (pour over) to trust ownership.  Used in conjunction with an inter vivos trust.

Power of attorney for financial and property matters:  A legal document in which you name one or more agents to manage financial and property affairs for you during your lifetime. These powers are extinguished upon death.

Principal:  The person who signs a power of attorney.

Probate:  A court proceeding to determine where, how and to whom to distribute the decedent's estate, including all real property.

Probate Administration:  The legal process whereby a probate court supervises the marshalling of a deceased person's debts and taxes and then orders the estate property to be distributed according to the decedent's will, or in its absence, to the deceased person's heirs. The probate court has jurisdiction over the personal representative and the decedent's estate.

Probate avoider:  An arrangement (beneficiary naming, joint tenancy, pay-on-death account, revocable trust, etc.) used by a person during lifetime that removes an asset from his or her probate estate.

Probate real estate sale: The transfer of legal title (ownership) of real property from the estate of the person who has died to his or her beneficiaries or to a buyer under the supervision of the Court.

Probate referee: Before real property can be sold through probate, it must be appraised. This is done by a probate referee. In California, probate referees are appointed by the State Controller. They are assigned to a particular case by the Court Clerk. They are paid for this service directly by the estate, usually as a set percentage of the appraised value.

Real Property: The term used to refer to real estate (land and buildings) or property permanently affixed to land. Properties may be residential, commercial or land.

Remainder Interest: An ownership interest in property that will become a present interest after the present owner or life tenant has received all the property benefits to which he/she is entitled.

Residue: The remaining part of a decedent's estate after the payments of debts and legacies. It may also be called "residuary estate".

Residuary Beneficiary: The person or entity to whom all or part of the residue is distributed.

Reversionary Interest: An ownership interest in property that returns to the original owner when the intervenening interest expires.

Revocable Trust: A trust whose terms and provisions can be changed, modified, altered, amended or revoked.

Right of Representation: A method of distribution, sometimes referred to as "per stirpes", whereby the share of distribution of a deceased beneficiary is divided equally among his children.

Separate property:  Typically, assets a married person inherits or receives as a gift or that were owned by the person before the marriage.  They must be kept separate from community property.

Settlor:  An alternate term for grantor or trustor of a trust; the person who "settles" assets into a trust.

SSD:  Social Security Disability: a disability program for those under 65 years of age.

SSI:  Supplemental Security Income: an income assistance program for people who are 65 or older, blind or disabled, with low assets and low income.

Tenancy in Common:  A form of holding title to real or personal property by two or more persons. There is no right of suvivorship. Tenants in common need not hold equal interest. On the death of one tenant in common, his/her interest will pass by his/her will or according to the laws of intestate succession.

Testamentary Trust:  A form of trust that comes into being only as a result of the death of a person whose will provides for the creation of the trust after his/her death, hence, the term "testamentary". Once created, this trust is irrevocable.

Testate: When someone dies leaving a will.

Testator/Testatrix:  The person who creates and signs a will. Testator is masculine, testatrix is feminine.

Trust: A legal entity established either during a trustor's lifetime (inter vivos) or at his death (testamentary). The trust is governed by the terms set forth in the trust documents. A trust must have a trustee, a beneficiary and a "corpus" or property subjected to the trust.

Trustee: The person or corporation named in a trust to be in charge of trust assets. The trustee has a fiduciary responsibility to the beneficiaries of the trust to act in concert with the trust directions. The trustee is subject to strict regulaton. Although he/she has legal title for convenience, the beneficial or equitable title is in fact owned by the beneficiaries. When there is more than one trustee, the trustees are called co-trustees.

Trustor: The person or persons who establish a trust. There can be more than one trustor.

Uniform Gifts to Minors Act - UGMA: A law that permits a person ("donor") to register stock, bank accounts or insurance in the name of another ("custodian") for the benefit of one who is at the time a minor ("beneficiary") without preparing a formal trust document. In effect, the trust document has been written into the law. In so doing, the donor makes an irrevocable gift of the property to the minor, but the custodian holds, invests, reinvests and applies the property for the benefit of the minor until his/her majority at which time the property is turned over to the beneficiary. This is a simple, inexpensive way to make small gifts to a minor.

Will: A legal document prepared and executed by a person with the formality required by the laws of the domicile state twhich is intended to govern and direct the disposition of his/her estate and settlement of his/her legal affairs at the time of his/her death. A will has no effect until death occurs. A handwritten will (holographic will) does not require witnesses. A typewritten will ("witnessed will") requires two or more witnesses as to the signature of the will. They must be willing to testify at a later date that the execution of the will was not procured by fraud, duress or misrepresentation.